Brookshire Bros., Inc. v. Wagnon

• Decision Date: 26 August 1998
• Docket Number: No. 12-97-00179-CV,12-97-00179-CV
• Citation: 979 S.W.2d 343
• Parties: BROOKSHIRE BROTHERS, INC., Appellant, v. Talbert WAGNON, Appellee.
• Court: Texas Court of Appeals

Page 343

979 S.W.2d 343

BROOKSHIRE BROTHERS, INC., Appellant, v. Talbert WAGNON, Appellee.

No. 12-97-00179-CV.

Court of Appeals of Texas Tyler.

Aug. 26, 1998.

Rehearing Overruled Oct. 30, 1998.

Curtis W. Fenley, III, Lufkin, for appellant.

Jim Ammerman, III, Marshall, for appellee.

Before HOLCOMB and HADDEN, JJ., and BASS, Retired Justice, Twelfth Court of Appeals, TYLER, sitting by assignment.

HOLCOMB, Justice.

Brookshire Brothers, Inc. ("Brookshire") files this appeal complaining of a judgment rendered for Talbert Wagnon ("Wagnon"). This worker's compensation nonsubscriber case was tried to a jury on two occasions. The first verdict was for Brookshire on a finding of no negligence. The trial court granted Wagnon's motion for new trial, and the second jury found for Wagnon and awarded him $750,000 .00 in damages. Brookshire files ten points of error. We will affirm.

Brookshire employed Wagnon as a butcher at its Carthage, Texas store. On the day of the injury, a delivery truck arrived with merchandise for the store. After the truck left, Wagnon and two other employees unloaded the pallets. The truck later returned with another pallet containing meat for the meat market. Wagnon unloaded the meat from this pallet by himself. The injury to his back occurred when he lifted a heavy box of meat (approximately 80 pounds), which was located on the pallet close to the floor, then twisted his body to place it on the top shelf of a cart. This cart was used to haul the meat to the cooler. Wagnon claimed at trial that Brookshire did not provide him with a safe workplace, since the boxes he was required to lift were too heavy to be lifted without help. He also maintained that Brookshire was aware of the dangers involved, since other workers had been similarly injured.

In its first point of error, Brookshire complains that the trial court erred in granting Wagnon's motion for new trial. It is well-settled Texas law, however, that an order granting a timely-filed motion for new trial is not subject to review on appeal. Hayden v. American Honda Motor Co., 835 S.W.2d 652, 654 (Tex.App.--Tyler 1992, no writ). We overrule Brookshire's first point of error.

In its second point of error, Brookshire asserts that the trial court erred in denying its requested special issue on comparative causation. It cites Texas Workers' Compensation Comm'n. v. Garcia, 893 S.W.2d 504, 521 (Tex.1995) for the proposition that an injured employee in a nonsubscriber case must prove that he or she was not more than 50% negligent in causing the injury. We disagree that Garcia is determinative of this issue, however, because the dispute before the Supreme Court of Texas was the constitutionality of the Worker's Compensation Act. The language was not essential to the outcome of the case, nor did comparative negligence constitute even a minor issue in that case. The brief statement that an employee cannot recover if he is more than 50% negligent was clearly dicta and noncontrolling.

In an action against a nonsubscriber, it is not a defense 1) that the employee was guilty of contributory negligence; 2) that the employee assumed the risk of injury or death; or 3) that the injury or death was caused by the negligence of a fellow employee. TEX.LAB.CODE ANN. § 406.033 (Vernon 1996). The employer may only defend the action on the ground that the injury was caused by an act of the employee intended to bring about the injury or while the employee was in a state of intoxication. Id. In other words, the employer's only defense may be that it was not negligent in causing the injury or that its employee was the sole proximate cause of the injury. Holiday Hills Retirement and Nursing Center, Inc. v. Yeldell, 686 S.W.2d 770, 775 (Tex.App.--Fort Worth 1985), rev'd on other grounds, 701 S.W.2d 243 (Tex.1985). The Worker's Compensation Act clearly seeks to exclude from jury consideration any issue submitting an employee's fault, negligence, or responsibility, other than sole proximate cause. We hold that in an employee's suit against a nonsubscribing employer, comparative negligence is not applicable and should not be submitted to the jury. See Id. We overrule point of error two.

In its third point of error, Brookshire argues that the trial court erred in admitting evidence of unrelated prior acts to establish prior knowledge or foreseeability. At trial, Robert Jones ("Jones"), Charlotte Abernathy ("Abernathy") and Patricia Moore ("Moore") all testified regarding their claims of injuries and accidents on the job. In addition, Wagnon's expert testified concerning Jones, Abernathy and Moore's injuries as a prelude to his opinion that Brookshire was negligent when Wagnon was injured. Brookshire maintains that none of the injuries occurred in substantially similar circumstances as Wagnon's, and were therefore irrelevant. In addition, the injuries occurred prior to 1990 when Brookshire became a nonsubscriber and instituted a new training and safety program.

Relevant evidence is generally admissible. TEX.R.CIV.EVID. 402. The relevance, and therefore the admissibility, of other accidents or similar events is determined by: 1) a predicate of "similar" or "reasonably similar" conditions; 2) connection of the conditions in some "special way"; and 3) that the incidents occurred by means of the same instrumentality. Winn-Dixie Texas, Inc. v. Buck, 719 S.W.2d 251, 254 (Tex.App.--Fort Worth 1986, no writ), overruled on other grounds, Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 940 (Tex.1990). Admitting evidence is a matter within the discretion of the trial court. Tracy v. Annie's Attic, Inc., 840 S.W.2d 527, 531 (Tex.App.--Tyler 1992, writ denied).

In the instant case, Wagnon was injured in the meat market when he lifted a heavy box of meat above his head and twisted his body to place the box on the unicart. Abernathy hurt herself when she lifted a heavy tray of meat and twisted her body in the process of setting it down. Jones hurt himself when he was required to pick up from the floor a plastic tub filled with meat, lift it up to his chest, push it away from his body and dump the meat upside down into a grinder. He had to twist his body in the process of lifting and dumping. Because the prior injuries of these other employees involved lifting heavy objects while incorporating a twisting motion, and there was no indication that any other condition was implicated in causing the injuries, the Winn-Dixie predicate was satisfied. In addition, these injuries were relevant to the issue of foreseeability, an element of negligence. Applying Rules 401 and 402 of the Rules of Civil Evidence, the court could have concluded that the prior injuries were relevant to show that Brookshire, with knowledge of the prior similar injuries, could have foreseen that failure to provide necessary equipment or failure to require team lifting might have contributed to Wagnon's injury. Consequently, we hold that the trial court did not abuse its discretion in admitting evidence of these injuries.

In regards to Moore, her testimony that she had been hurt while working for Brookshire came in without objection. She was then asked by Brookshire about going back to work after her injury. When Wagnon finally asked Moore how she was hurt, Brookshire objected. The trial court held a bench conference, but it was not on the record. Consequently, we do not know how or if the court ruled on the objection. Brookshire failed to complain that the conference was not on the record or that the court did not rule on the objection. Brookshire, therefore, waived error on the admission of Moore's testimony.

Brookshire also argues that Wagnon's expert witness, Henry Wickes ("Wickes"), was impermissibly allowed to testify about the above-described injuries. Because we have held that the occurrences satisfied the Winn-Dixie test, it was not error for Wickes to testify concerning those injuries. Brookshire further complains that the trial court erred when it admitted Jim Martin's ("Martin") testimony that when he was employed as a butcher through 1989, Brookshire had no safety program. Because of its proximity in time to Wagnon's injury in 1990, as well as because of its cumulative nature, ¹ we hold that this was not error, or if error, not harmful.

In its fourth point of error, Brookshire asserts that there was insufficient evidence of proximate causation to establish liability. In reviewing an attack on the legal sufficiency of the evidence, or a "no evidence" point, we consider only the evidence and reasonable inferences that tend to support the trial court's findings, and disregard all evidence and inferences to the contrary. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). If there is more than a scintilla of evidence to support the finding, the court of appeals may not overturn the finding on a no evidence point of error. Responsive Terminal Systems, Inc. v. Boy Scouts of America, 774 S.W.2d 666, 668 (Tex.1989). When reviewing a judgment to determine factual insufficiency of the evidence, this court must consider and weigh all of the evidence, and should set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

As Brookshire correctly points out, causation consists of cause in fact and foreseeability. Brookshire asserts that the injury in question was not caused when Wagnon lifted a single box of heavy meat, but when he was simply performing his regular duties. Consequently, the injury was not foreseeable. It cites numerous pre-OSHA cases in support of this proposition. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995) makes it clear, however, that this is true only if the job itself is not unusual or does not pose a threat of injury.

Wickes testified that the guidelines for manual work practices, which was published by National Institute for Occupational Safety &...